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TMI Blog2014 (9) TMI 400X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal not acceptable - In fact, the First Appellate Authority pointed out that the information furnished in the certificate given by the supplier itself was found to be false and investigation was initiated. Moreover, when the respondent themselves requested the assessment to be done at the enhance value, even before test report, it clearly shows that the assessee was aware of the aware of the quality/grade of the imported goods and trying to escape the rigour of anti-dumping duty. Extended period of limitation - Held that:- In the case on hand, Section 9A of the Customs Tariff Act, 1975 was not invoked at all and the goods were given an order of clearance after assessment of the goods. Therefore, it is a clear case, where Section 28(3)(a) of the Customs Act, 1962 is invokable and the relevant date for determination of limitation would be the date of clearance of the goods and therefore, the demand is not hit by limitation. In the absence of specific challenge to the certificate issued by the Central Silk Board or to the findings of the Tribunal, on this aspect of the bonafideness of the assessee/importer, the reasoning of the Tribunal is perverse, hence, the order of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otice dated 10-1-2005 was issued to the respondent calling upon the respondent to explain as to why the customs duty amounting to ₹ 1,99,825/- as applicable under Customs Notification No. 106/2003-Cus., dated 10-7-2003 should not be demanded under proviso to Section 28(1) of Customs Act, 1962 (hereinafter called as the Act ) along with interest as applicable; as to why the goods should not be confiscated under Section 111(m) of the Customs Act, 1962; why penalty should not be imposed under Section 112(a) of the Customs Act, 1962 and penalty equivalent to the duty evaded in respect of the Bill of Entry dated 15-6-2004 should not be imposed on the importer under Section 114(a) of Customs Act, 1962 as the duty evasion has occurred on account of willful misstatement and suppression of facts. 3. The respondent/importer submitted that their reply dated 21-2-2005 stating that show cause notice issued was void and that the enhancement of value as against the declared value is not relevant for determining value in terms of the Customs Law and as such enhancement of value done is deemed to have been done only at the level of an Asst./Deputy Commissioner of Customs in terms of Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been issued on 12-9-2004 and the show cause notice had been received by the assesse on 12-1-2005 and hence, the demand is not barred by limitation. Further it was contended that the consignment had been tested and misdeclaration had been established. 7. The First Appellate Authority, elaborately considered the materials and confirmed the order of the Adjudication Authority and held that the demand is not hit by limitation and the appeal was dismissed. Aggrieved by the same, the respondent/assessee preferred appeal before the Customs, Excise and Service Tax Appellate Tribunal. The assessee reiterated the contentions raised before the First Appellate Authority. 8. The Tribunal, by order dated 24-10-2008 observed that the demand notice was issued beyond six months from the dated of payment of duty, unless the larger period is invocable, the demand is barred by limitation. Further it was pointed out the importer himself came forward to pay the differential duty compared to the declared value even before the test results were received showing that the goods were of 2A grade. The Tribunal, by relying upon the certificate given by Chinese supplier held that there is no evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee was aware of the aware of the quality/grade of the imported goods and trying to escape the rigour of anti-dumping duty. Further more, the respondent themselves accepted that the certificate produced from the Republic of China was rejected in preference to the certificate issued by the Central Silk Board and further more, the respondent did not question the certificate issued by the Central Silk Board classifying the product as 2A grade in the appeal filed before the Tribunal. 12. The next question which has to be considered is a to whether it is a case where the Department was justified in invoking the larger period of limitation and the effect of Section 28(3)(a) of the Act. Section 28(3)(a) of the Act covers the situation where levy and assessment has taken place, but, Sub Clause (d) of Section 28(3) of the Act covers the situation where levy and assessment and collection has been completed. The case on hand is the case where the Department, after obtaining the test report, from the Central Authority came to the conclusion that it is a case of misdeclaration of the imported goods due to which anti-dumping duty is payable. It is a separate levy by itself. The First Appel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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